Bill of Rights Day: What’s Left of Them?

John Jay, the co-writer of the Federalist Papers and the first
chief justice of the United States (1789-95), wrote in a 1786
letter to Thomas Jefferson that he was worried that under our
evolving founding document that became the Constitution, Congress
would have exorbitant power.

“These three great departments of sovereignty,” he
told Jefferson, “should be forever separated and so
distributed to serve as checks on each other.”

The separation of powers was indeed embodied in the
Constitution, but especially in the Bush and Obama administrations,
the executive branch has been so disproportionately and
unilaterally strengthened that I urge the Cato Institute to
actively redistribute, with a short epilogue, its 2008 book by Gene
Healy, The Cult of the Presidency: America’s Dangerous
Devotion to Executive Power. It can make for more crucially
discerning voters in 2012.

The Bill of Rights’ First Amendment, from which all our
individual liberties flow, is still working. Although FBI agents,
during J. Edgar Hoover’s reign, knocked on my door to
supplement the FBI files on me, I have not since been visited by
them. However, despite the Fourth Amendment, like so many
Americans, I am aware that this is increasingly a society under
government surveillance and tracking. Accordingly, many Americans
are becoming careful about what they say on the phone or the
Internet, let alone on cell phones or social media.

The Bill of Rights’ now-broken Fourth Amendment guaranteed
that we are protected against “unreasonable searches and
seizures” by the government. But it is now on life support,
thereby beginning to diminish citizens’ confident exercise of
the First Amendment. Do you want the FBI to know everything
you’re saying?

Also, the new generation — and quite possibly others to
follow — are recognizing that what they put about themselves
on Facebook, Twitter and other newly quickening means of
communication may be embedded in FBI and other government
files.

Also under attack by the government is the distinctively
American Fifth Amendment: No person “shall be compelled in
any criminal case to be a witness against himself, nor be deprived
of life, liberty or property, without due process of
law…”

Due process of law is our bedrock of citizenship, and it’s
greatly envied by many around the world. But the Bush-Cheney
administration cast it aside with regard to suspected terrorists
— including American citizens in certain contexts. Then, in
2009, President Barack Obama began pursuing, as Bush-Cheney already
had, preventive detention, by which terrorism suspects, including
Americans, can be held without going to a U.S. court, thereby also
doing away with due process.

Recently, Obama appears to have moderated in part his further
suspension of the Fifth Amendment, without abandoning preventive
detention entirely. This happened concerning a 93-to-7 Senate vote
for an amendment to the National Defense Authorization Act that
would empower the military to seize and hold terrorism suspects,
including Americans, within our borders, in preventive detention.
No right to trial.

What surprised me was that Obama, because of extraordinary
control given the military by the Senate vote, threatened a veto of
the bill, while also among its opponents were FBI Director Robert
Mueller and Defense Secretary Leon Panetta — neither of whom
would have been recognized by John Jay or Thomas Jefferson as civil
libertarians.

As of this writing, the ultimate vote on this defense
authorization bill is still pending; but alarming is the fact that
93 senators — in what these days was an astonishingly large
bipartisan vote — were so eager to deny these suspects,
including Americans, any trace of due process of law.

Were he still alive, John Jay would remind us why he so feared a
Congress so leaping over the separation of powers.

Another section of the Bill of Rights, the Eighth
Amendment’s banning of “cruel and unusual
punishments,” was brutally suspended during the Bush-Cheney
“torture policy” in the CIA secret prisons
(“black sites”) and elsewhere. And the CIA
“renditions” to other nations known for torturing their
prisoners continue, to some extent, under President Obama. I have
reported, for instance, on a covert part of a U.S. prison on our
Bagram Air Base in Afghanistan where former prisoners have
described being tortured to the BBC.

The Republican presidential aspirants seem to have only the
smallest concern about any of this dismembering of the Bill of
Rights I have cited in my inability to celebrate, rather than
mourn, Bill of Rights Day. The incumbent in the White House has
refused any attempts at accountability — through independent
investigations — for the Bush-Cheney desecration of the Bill
of Rights, let alone his own.

How many voters in 2012 will keep in mind America’s
continuous Dangerous Devotion to Executive Power?